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One of the drawbacks for Plaintiffs in personal injury suits in the D.C. and Maryland area is that they are the only two jurisdictions that follow the law of contributory negligence.  This means that if a plaintiff’s negligence contributed in any way to his or her injuries, even by a small nominal percentage, he cannot recover.

Contributory negligence is an affirmative defense, which means the Defendant in a personal injury action has the burden of proving it at trial.  The Defendant must prove that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves.  

In the context of a medical malpractice case, as opposed to say a car accident case, the defense of contributory negligence is not often raised.  In most cases it is hard to argue that a patient, who has entrusted his or her care to a healthcare provider, was contributorily negligent. After all, how does one argue that a patient had “knowledge and appreciation” of how his conduct would affect his medical treatment, if he is reliant on his doctor’s advice?  It is most commonly invoked in cases where the patient received advice from a doctor that they knowingly ignored, such as failing to take an antibiotic or other medication.

However, in a recent case, the Maryland Court of Special Appeals held that a patient is not contributorily negligent for conduct that occurred prior to a healthcare provider’s treatment.  See Barbosa v. Osbourne , 183 A.3d 785, 237 Md.App. 1 (2018).  In Barbosa , the Court held that a patient who left the emergency room after waiting for almost two hours before being seen was not contributorily negligent, and forbid the Defendants from raising that defense.  The Court reasoned that “the pre-treatment conduct of a patient is irrelevant” in determining whether a healthcare provider is liable for breaching the standard of care. There are many patients whose conduct prior to medical intervention, whether it’s an unhealthy lifestyle or a failure to seek medical assistance sooner, contributes to their demise  Thankfully, in Barbosa the court made clear that unless those choices involve ignoring a healthcare provider’s clear instructions, it cannot be a bar to a medical negligence action.  

Do you believe that you or your loved one has suffered as a result of medical malpractice or medical neglect? You need to talk to an experienced team of local lawyers today.

The lawyers at Cardaro & Peek, LLC have the experience and resources necessary to investigate and litigate all types of medical claims throughout Maryland and Washington D.C. Cardaro & Peek, LLC has medical personnel on staff and has access to nationally recognized, board-certified physicians and other experts, to assist in the investigation, analysis, and prosecution of all types of medical malpractice claims. If you or a loved one have experienced malpractice, give us a call at 410-752-6166. Please visit our website www.cardarolaw.com and follow us on Facebook , Twitter , Google+ , and LinkedIn for more information.

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